“Without Which Nothing”: Public Law As the Sine Qua Non of Public Administration

• Author: Phillip J. Cooper
• Published date: 01 May 2017
• Date: 01 May 2017
• DOI: http://doi.org/10.1177/0095399717690562
• Subject Matter: Mini-Symposium on Law in the PA Curriculum

https://doi.org/10.1177/0095399717690562

Administration & Society

2017, Vol. 49(5) 634 –657

© The Author(s) 2017

DOI: 10.1177/0095399717690562

journals.sagepub.com/home/aas

Mini-Symposium on Law in the PA Curriculum

“Without Which

Nothing”: Public Law

As the Sine Qua Non of

Public Administration

Phillip J. Cooper1

Abstract

Without public law, there is and can be no public administration in a nation

that is a constitutional republic founded on the rule and supremacy of law.

Public law is the basis for authority and a foundation for discretion. It is also

a basis for creativity and innovation. This article considers how public law

empowers administration, why public service professionals cannot assume

authority and discretion, and why they need to be alert to public law if they

wish to build an innovative public administration for the future particularly

in the contemporary context.

Keywords

public law, administrative law, public administration, Constitution,

administrative rules, Supreme Court

Introduction

No man in this country is so high that he is above the law. No officer of the law

may set that law at defiance with impunity. All the officers of the government,

from the highest to the lowest, are creatures of the law, and are bound to obey

it. (United States v. Lee, 1882, p. 220)

1Portland State University, OR, USA

Corresponding Author:

Phillip J. Cooper, Mark O. Hatfield School of Government, Portland State University, P.O.

Box 751, Portland, OR 97207, USA.

Email: pcooper@pdx.edu

690562AASXXX10.1177/0095399717690562Administration & SocietyCooper

research-article2017

Cooper 635

This is one of the clearest statements of the rule and supremacy of law in the

United States. The first part of the statement is well known even by those who

have never read it and have no idea as to its origin. However, the second sen-

tence is equally important. It states the fundamental principle that all public

officials are officers of the law and are created and empowered by that law.

Their positions exist and have authority only and by virtue of the law. Without

public law, there is and can be no public administration in a nation that is a

constitutional republic founded on the rule and supremacy of law. Indeed,

public law is the sine qua non without which there is no public administration

in the United States or other countries founded on the same principle.

In a time in which public service professionals are so focused on mis-

sion, metrics, and management, it is common to ignore that fundamental

truth, but doing so is problematic and even dangerous, particularly where

those officers assume that they have sufficient authority and jurisdiction to

do what they wish the way they wish to do it. Public law is the basis for

authority and a foundation for discretion. It is also a basis for creativity

and innovation.

This article considers how public law empowers administration, why pub-

lic service professionals cannot assume authority and discretion, and why

they need to be alert to public law if they wish to build an innovative public

administration for the future.

Foundations for Action Without Which Nothing

Neither the statement of the supremacy of law from United States v. Lee nor

Chief Justice John Marshall’s reminder that “the government of the United

States has been emphatically termed a government of laws, and not of men”

(Marbury v. Madison, 1803, p. 163) should be taken to mean that law is only

or even primarily something that limits public administrators, because the

purpose of much of public law is to empower and enable them. That is not

only true of the Constitution but of the rest of the law that is essential to effec-

tive governance.

The Constitution: A Necessary But Not Sufficient Foundation for

Public Administration

The primary purpose of the Constitution was to create efficacious govern-

ment and to do so in the face of a disastrous experience under the Articles of

Confederation, including the continuing bad behavior by state governments.

The framers understood that the task required not only framing a government

structurally but also empowering it so that it could be administered